Losing or Leaving a Job? Know Your Rights

Takeaway:
Most employees who are not in the civil service or a member of a union are employees "at will." This means that an employer doesn't need a reason to fire them. Nevertheless, some reasons for firing an employee have been made illegal by federal and state laws.

Nothing lasts forever, including employment. If your job is coming to an end (voluntarily or otherwise), here are some protections that you may want to keep in mind.

Health Insurance

Many employees receive health insurance coverage through a group insurance plan provided by their employer. If you are terminated from your employment for any reason other than gross misconduct, and want to keep your health insurance coverage, be sure to inquire about COBRA benefits.

COBRA allows you to continue to participate in your group health insurance plan for a period of time (usually 18 months) after your employment ends. If the COBRA law applies to your employer, you must be notified of your right to elect COBRA coverage no later than 30 days after your termination. You then have a period of time (usually 60 days after you receive the notice) in which to elect the continuation of your health insurance.

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If you choose to exercise your COBRA benefits, you may be required to pay not only the share of the premium that you paid during your employment, but also the share that your employer paid for you. Since your insurance expense will probably increase, you should explore alternatives. You might save money by finding insurance through the new health insurance marketplace. On the other hand, you might like your existing insurance coverage and, if the rates are comparable to other plans that you find, you might choose to keep your insurance in effect through COBRA.

Unemployment Insurance

If you were laid off or fired from your job, you probably have the right to collect unemployment benefits. You generally cannot receive those benefits if you quit your job, although an exception to that rule may exist if you were forced to quit. For example, if your only choice was to quit or to continue enduring constant sexual harassment, you might qualify for unemployment benefits.

You may not be able to collect unemployment if you were fired for misconduct. What constitutes misconduct and how serious it must be to disqualify you from receiving unemployment benefits varies from state to state. Being fired for stealing from your employer usually justifies the denial of unemployment benefits, while being fired for occasional tardiness usually does not.

Reference Letters

You do not have a right to receive a reference from your employer, but you might want to ask for one if you are leaving on favorable terms. If you are negotiating your resignation, you might want to agree on the language of any reference provided to potential employers that contact your current employer.

While employers are not required to provide a reference, they cannot make false or defamatory statements about you if they decide to respond to a request for a reference. If you have been fired under less than cordial circumstances, you should ask your employer to give you a "neutral" reference that simply confirms the dates of your employment and the wage that you earned without explaining the reason for your termination. Many employers will agree to that request rather than risking liability for a defamation suit resulting from a poor reference.

Plant Closings

A federal law known as the WARN Act requires large employers (those with 100 or more employees) to notify their employees that a worksite is closing if at least 50 employees at that site will lose their employment for at least 30 days. The notification requirement also applies to layoffs not caused by a worksite closing if at least 500 employees will be laid off for at least 30 days.

Although there are a number of exceptions to the WARN Act, employers must generally give the required notice 60 days in advance of a foreseeable closing or layoff. Employees who do not receive the required notice may be entitled to compensation that includes up to 60 days of back pay. The law requires the employer to pay the attorney’s fee incurred by employees who bring successful claims for compensation.

Some states have plant closing and layoff notification laws that provide more vigorous protections than the WARN Act. You should talk to an employment lawyer in your state if you were laid off or fired without warning, particularly if a significant number of other employees suffered the same fate.

Breach of Employment Contract

If you have an employment contract, the terms under which your employment can be terminated are probably covered by the contract. If you do not understand your employment contract, you should review it with a lawyer.

Occasionally, promises are made to employees in policy manuals or elsewhere that create an implied contract. Those promises might create an exception to at-will employment by creating conditions that must exist before employment can be terminated. Firing an employee when those conditions do not exist might be a breach of the implied contract. An employment attorney can help you determine whether your employment is or was governed by an implied contract.

Severance Pay

Employees do not have a right to severance pay unless that right is guaranteed in a contract or collective bargaining agreement. If you have a contract that entitles you to severance pay and are not sure you understand its terms, you should consult a lawyer or a union representative to make sure that you receive the severance pay to which you are entitled.

Some employees who have no employment contract are offered severance pay in exchange for surrendering their right to sue the employer for wrongful termination. That frequently happens when an older employee is fired who may have a claim for age discrimination. You always have the right to obtain legal advice before you give up your right to sue. An employment lawyer can help you decide whether to accept an offer to waive your right to sue in exchange for severance pay.

Civil Service and Labor Union Rights

Government workers who are not at a managerial level often receive the protection of civil service laws. Those laws typically require an employer to have a legitimate reason (or "just cause") for a termination of employment. If you have civil service protections and think you were fired without a good reason, you should get legal advice.

Members of labor unions are protected by contracts known as collective bargaining agreements (CBAs). Although the terms of a CBA will vary from union to union and from employer to employer, they typically specify when an employee can be laid off, usually by giving stronger protections to employees with more seniority. A CBA will often include protections against termination without cause. If you were fired from a union job, talk to your union representative. If you are not satisfied after having that discussion, you should consult with a labor lawyer.

Compensation for Wrongful Termination

Most employees who are not in the civil service or a member of a union are employees "at will." That means that an employer does not need to have a reason to fire the employee. Nevertheless, some reasons for firing an employee have been made illegal by federal and state laws. Federal law makes it illegal in every state to base an employment termination on any of the following:

Some state laws expand the list of forbidden grounds for termination to include (among other factors):

Sexual identity

Political beliefs or actions

Marital or family status

Military or veteran status

Medical conditions

If you think that you might have been fired because of your membership in one of the protected categories listed above, or if you are unsure of which categories are protected in your state, you should get advice from an employment attorney.

Some states also permit employees to sue if their termination violated a public policy. Being fired because you refused to commit an illegal act is an example of a public policy that might justify a wrongful termination lawsuit. If you think your termination might be contrary to the public interest, you should ask an employment lawyer whether you have a remedy.

For more than 30 years, T.C. Kelly represented clients in litigation and appeals, concentrating his practice in the areas of criminal defense, employment law, and personal injury. He now works as a consultant to attorneys and as a freelance legal writer.